ALJDEC decisions subject to certification as final

2018A-1522-CHC-ROC · Registrar of Contractors · 2018-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Delfino and Barb Delfino,

COMPLAINANT,

O C C Woodworking LLC dba,

Oswalt S Custom Cabinets and Woodworking,

License No: 242840

RESPONDENT.

No. 2018A-1522-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2018, 8:30 A.M.

APPEARANCES: Kenneth P. Bemis, Esq., appeared on behalf of Complainants; Todd Oswalt, member, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. O C C Woodworking, LLC, dba Oswalt S Custom Cabinets and Woodworking (Respondent), is the holder of License Number 242840 issued by the Registrar of Contractors (Registrar).

2. On or about April 3, 2018, Michael and Barb Delfino (Complainants) filed a Complaint against Respondent with the Registrar alleging poor work in connection with Respondent’s installation of cabinets at Complainant’s residence in Apache Junction, Arizona (“project”). The Complaint reflected a contract amount of $22,863.16.

3. The Registrar performed an inspection of the project on May 8, 2018. Thereafter, the Registrar issued a Directive, dated May 9, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 24, 2018, as follows:

Complaint Item 1: Kitchen sink cabinet – finish flaking prior to moving in.

Finish flaking off on cabinets below and to right of kitchen sink, finish flaking off on cabinets below Island kitchen sink, finish flaking off on toe-kick of cabinets below Island kitchen sink and, finish flaking off on cabinets below powder bathroom sink. Respondent is to determine reason for failure of finish and, correct by the appropriate means.

Complaint Item 2: Numerous cabinets continue to have finish flake off.

Complaint Item 3: Cabinets have chips throughout.

Finish chipping on cabinets is chipping off in the kitchen, master bathroom, powder room, hall bathroom and, laundry room. Respondent is to determine reason for failure of finish and, correct by the appropriate means.

Complaint Item 4: Doors + drawers need adjustments.

Left drawer below kitchen range does not make contact with cabinet face, left base door to right of kitchen range does not make contact with cabinet facing, right cabinet door to left of kitchen wall hutch is shorter than left cabinet door, warped upper far right cabinet door to left of refrigerator, warped upper right cabinet door to left of refrigerator, left cabinet door below Island kitchen sink does not make contact with cabinet face. It should be noted that there are several drawers and cabinet doors, that failed to operate as intended in the kitchen area. Respondent is to correct the above by the appropriate means.

Complaint Item 5: Base of Kitchen Island cabinet is bowed.

Northwest (N/W) corner of Island cabinet base is not straight by 1⁄2′′ in 3 1⁄2′ and, not straight by 1⁄2′′ in 3 1⁄2′ at northeast (N/E) corner of Island cabinet base. Respondent is to correct the above by the appropriate means.

4. After the Registrar was informed that no corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated June 5, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1124(B) for failure to include license number in bid and violation of A.R.S. § 32-1158(A) for failure to include required information in contract);

d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for September 11, 2018, at 8:30 A.M.

6. At the September 11, 2018, hearing, Complainants Barbara Delfino and Michael Delfino testified on their own behalf and presented the testimony of Cynthia Wagner. Respondent presented the testimony of Todd Oswalt, member of Respondent, and Joseph Dudo. Beau Cruz, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ exhibit numbers 1 - 10 and Respondent’s exhibit numbers 1 - 14.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that he performed a pre-hearing inspection on August 3, 2018, and observed that none of the Directive items had been fully completed. He also stated that it was evident that Respondent had attempted to correct Directive item no. 5 but that in his view, the island was still noticeably off.

8. Complainant Barbara Delfino testified that Respondent installed the cabinets on August 9, 2018, and that they moved into the residence on September 1. She stated she immediately saw the stain flaking on the cabinets, seams on the cabinets coming apart, and nicks on them throughout. She also stated that she would dust the cabinets with a microfiber cloth and the finish would come off on the cloth. She further testified that she did a test spot with acetone on a cloth and the acetone took all finish off. She was told by another contractor that this was because the stain had not adhered to the wood and to fix this, the cabinets would have to be stripped, sanded, and re-stained.

9. Ms. Delfino also testified that in the beginning, Respondent touched up some of the nicks and told Complainants to give it a month and he would come back and do the adjustments but that he never returned to do any adjustments. She stated that Respondent also removed two cabinet doors from under the sink before they moved in and re-stained them. She stated that Todd Oswalt stated that the cabinets could have possibly gotten wet at his shop due to the rain.

10. Complainant Michael Delfino testified that he agreed with his wife’s testimony. He testified that his first text to Respondent was on September 25, 2017, after the cabinets were installed when he asked Respondent when he was coming back to address the cabinets. He further testified that there is flaking far away from sinks that could not have come in contact with water.

11. Cynthia Wagner, a relative of Complainants, testified on behalf of Complainants that she visited the house during construction in the summer of 2017 before Complainants moved in and observed chipping on the cabinets and cabinet doors that were not even.

12. Todd Oswalt, member of Respondent, testified on behalf of Respondent that he finished the job in August 2017 and did not go back until December 2017 and said that he never got communications from Complainants until December. He further stated that in December, he took two doors from the kitchen island to strip and re-stain and also did touch-up. He further stated that he returned in March 2018 and took the same doors to re-stain and saw problems starting on other cabinet doors.

13. Mr. Oswalt further testified that there had been water damage to the cabinet doors under the sink. He presented photographs showing rings from water and water spots. (Respondent’s Exhibit Nos. 3 - 9). He also presented a statement from the company that re-finished the two doors that were removed stating that it appeared that the flaking was from excess water. (Respondent’s Exhibit No. 14). He did acknowledge that he had had a conversation with Complainants about the cabinets possibly getting wet at his shop. He further stated that some of the cabinet doors show expansion, which he stated could result from monsoon season. As to Complaint item number 5 regarding a bowed cabinet, he stated that he installed it straight with the grout line. He further stated that he believed not having knobs could have caused flaking.

14. Joseph Dudo, a sales consultant for a paint supplier, testified on behalf of Respondent that if there had been a cabinet finish failure, it would be evident throughout the cabinets and not just in certain areas. He stated he observed that the chipping was on the edges of the cabinets, not on faces, which he stated was normal wear and tear. He also stated that he believed the monsoon season could cause expansion of the cabinets which could cause problems. He further testified that he ran adhesion tests on two cabinet doors and ran a mil thickness test which was well within manufacturer’s specifications. He stated he also did a cross hatch adhesion test that showed no adhesion failure. (Respondent’s Exhibit Nos. 10, 11, and 13).

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

12. Failure in any material respect to comply with this chapter.

...

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1158(A) requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain the following information:

...

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....

7. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.), A.R.S. § 32-1124(B) requires in pertinent part that:

The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.

8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Complainants have presented credible evidence that they were not the cause of the defects in the cabinets. While Respondent seemed to suggest that the issues with the cabinets did not arise until a considerable time after they were installed, the evidence presented showed otherwise. The uncontradicted evidence was that the cabinets were installed in August 2017, Complainants moved in to the residence in September 2017, and that Complainants texted Respondent as early as September 25, 2017, asking when Respondent was going to address the issues with the cabinets. It could hardly be accepted, as Respondent submits, that wear and tear in that short period of time was the cause of flaking and the nicks on the cabinets.

9. Respondent’s contention that the issues with the cabinets were also caused by water damage was also not persuasive. Although the evidence showed that there was damage to the cabinets near the sinks, there was also damage to areas of the cabinets that were not in close proximity to the sinks. Further, even though the company that did work on the removed cabinet doors indicated that the flaking “appeared” to be from excessive water, (Respondent Exhibit No. 14), that opinion offered was not conclusive nor was there any basis provided for such an opinion. Moreover, even if there was water damage, the Tribunal cannot determine the source of that water based on a preponderance of the evidence. Notably, Respondent conceded that there was a conversation with Complainants in which Mr. Oswalt stated that the cabinets might have gotten wet at his shop from the rain before they were installed. Further, Respondent’s attributing any damage to the installed cabinets to the monsoon season, within a month after their installation, is hardly credible. Lastly, Respondent offered no plausible explanation how the stain could be removed from the cabinets simply by wiping it with a microfiber cloth as testified to by Complainants.

10. A.R.S. § 32-1154(A)(12). Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract and with A.R.S. § 32-1124(B) for the failure to include the ROC license number in a bid. The evidence was uncontradicted that Complainant paid Respondent $22,863.16 for the project and that there was no disclosure of the customer’s right to file a complaint with the Registrar nor did Respondent’s bid contain Respondent’s license number. (Complainants’ Exhibit Nos. 7 - 8).

11. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. The evidence was uncontradicted that Respondent did not complete the corrective work once the Directive was issued. There was no evidence presented of a valid justification for not doing so.

12. Accordingly Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, O C C Woodworking, LLC’s, License Number 242840 is suspended for two days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, October 3, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors